Oswald v. Hutchinson, 26 Ill. App. 273 (1887)

Nov. 18, 1887 · Illinois Appellate Court

26 Ill. App. 273

Louis Oswald v. David Hutchinson.

Replevin&emdash;Demand&emdash;Evidence&emdash;Second Appeal.

An action of replevin may he brought against one whose possession is wrongful, without previous demand.

[Opinion filed November 18, 1887.]

Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding.

Messrs, James R. Ward and Frank R. Whiteside, for appellant.

Mr, Henry C. Withers, for appellee.

Conger, P. J.

This case was formerly before this court and is reported in 17 Ill. App. 28.

Upon its" being remanded a new trial was had and the jury were instructed in accordance with the law as held in the former opinion of this court.

Under these instructions and the evidence offered, the jury found that in the sale from Mitchell to Oswald no title to the wagons in controversy passed from Hutchinson but that he remained the owner of them, and, we think, they were fully justified in so finding.

Oswald having no title, his retaining the wagons in possession under a claim of ownership was such a wrongful possession as relieved appellee from making a demand before bringing suit. Wells on Replevin, Secs. 345-373; Clark v. Lewis, 35 Ill. 417.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.